MR.
CHAIRMAN: Hon. Members, before the
House takes up the next item, that is, reconsideration of the Parliament
(Prevention of Disqualification) Amendment Bill, 2006, I have an observation to
make.

As the hon. Members are aware, hon.
President, while returning this Bill, has desired the Parliament to reconsider
the Bill:

In the context of the
settled interpretation of the expression 'Office of Profit' on Article 102 of
the Constitution, and

the underlying
Constitutional principles therein.

Hon.
President has also desired that while reconsidering, among other things, the following
may be specifically addressed:

Evolution of generic and
comprehensive criteria which are just, fair and reasonable and can be applied
across all States and Union Territories in a clear and transparent manner;

the implication of
including for exemption of the names of offices the holding of which is alleged
to disqualify a member and in relation to which petitions for disqualification
are already under process by the competent authority; and

soundness and propriety
of law in making the applicability of the amendment retrospectively.

I
would, therefore, urge upon the hon. Members to focus on the issues referred to
in the President's message, while participating in the debate.

"That
the Parliament (Prevention of Disqualification) Amendment Bill, 2006, as passed
by the Houses of Parliament and returned by the President under the proviso to
article 111 of the Constitution, be taken into consideration".

Hon.
Chairman and Members, The Parliament (Prevention of Disqualification) Amendment
Bill, 2006 was considered and passed by this House on 17th May,
2006. (Interruptions) The Bill, as passed by both the Houses of
Parliament, was sent to the hon. President for assent on 25th May,
2006. (Interruptions) The hon.
President returned the Bill on 30th May, 2006 with a message to the
Houses for reconsideration of the Bill under the proviso to article 111 of the
Constitution. The message of the
President was published in Rajya Sabha, Parliamentary Bulletin, Part II on May
31, 2006. (Interruptions)

SHRI
DINESH TRIVEDI; Sir, why is this Bill
important than the lives of so many people.
(Interruptions)

SHRI
H.R. BHARDWAJ: Sir, the President, in
his message, directed that while reconsidering the Parliament (Prevention of
Disqualification) Amendment Bill, 2006, as passed by both the Houses of
Parliament, the following issues may be specifically addressed, namely:

3.Evolution of generic and comprehensive criteria
which are just, fair and reasonable and can be applied across all States and
Union Territories in a clear and transparent manner;

(Contd.
by 2a -- VP)

-USY/VP/2.35/2A

SHRI
H.R. BHARDWAJ (CONTD.): (b) The
implications of including for exemption the names of office, the holding of
which is alleged to disqualify a member and in relation to which petitions for
disqualification are already under process by the competent authority, and (c) soundness
and propriety of law in making applicability of amendment retrospectively.

Sir, I may state here that the expression
"holds any office of profit under the Government" occurring in
article 102 of the Constitution has nowhere been defined precisely. Its scope has to be gathered from the
pronouncements made, from time to time, by the Supreme Court and of the High
Courts as to what constitutes the expressions "office",
"profit" and "under the Government." The courts are of the view, I again repeat,
the courts are of the view that a practical view, not pedantic baskets of
tests, must guide the courts to arrive at an appropriate conclusion whether the
concerned office is an "office of profit."

Sir, article 102 (1) (a) of the
Constitution provides that a person shall be disqualified for being chosen as,
and for being, a Member of either House of Parliament, if he holds an office of
profit under the Government of India or the Government of any State, I may here
then say, other than office declared by Parliament by law not to disqualify its
holder. So, it is the Parliament which
has the power to exempt those Members of Parliament who are holding the office
of profit.

The Constitution of India demarcates the
legislative powers between the Union and States to deal with the
disqualification of Members of Parliament and
members of the State Legislatures.
The power of the State Legislatures, in respect of their members is contained
in article 191 (1) (a) of the Constitution and, accordingly, State Legislatures
have enacted the Prevention of Disqualification Acts for their respective
States. Any attempt by Parliament to
lay down generic criteria which will apply to the members of State Assemblies
may be seen as an encroachment by the Parliament in the domain of State
Legislatures.

Sir, the Parliament and State
Legislatures have plenary powers of legislation within the fields assigned to
them, and subject to certain constitutional and judicially recognised
restrictions can legislate prospectively as well as retrospectively. There is a
famous case in Rajasthan in which the Supreme Court gave its ruling. The
Supreme Court in Kanta Kathuria versus Manak Chand AIR 1970 SC 694 held
that article 191 of the Constitution itself recognises the power of the Legislature
of the State to declare by law that the holder of an office shall not be
disqualified for being chosen as a Member and for being a member of the
Legislature. There is nothing in the
words of the article to indicate that this declaration cannot be made with
retrospective effect. The word
'declared' in article 191 (1) (a) does not imply any limitation, Sir, I am
laying emphasis on 'limitation on the powers of the legislature.' The declaration can be made effective as
from an early date. This is the
rationale of the law of 1970, Supreme Court.

The Government has, therefore, carefully
and respectfully considered the message of the hon. President and it is of the
view that the Bill should again be considered and passed by the
Parliament.

Sir,
I commend the Bill for the consideration of this august House.

The
question was proposed.

MR.
CHAIRMAN: Any Member desiring to speak
may do so after which the Minister will reply. Shri Arun Jaitley. (Followed by 2B/PK)

-VP/PK/2B/2.40

SHRI
ARUN JAITLEY (GUJARAT): Mr. Chairman,
Sir, I am deeply obliged to you for giving me this opportunity on behalf of my
Party to oppose the Motion and the Bill moved by the hon. Law Minister. Sir, when I start to speak, I have two deep
regrets. One is with regard to the
substance of what we are discussing. We
approved something earlier, which was unconstitutional. The highest constitutional office in the
country advised us. We are now on the
strength of majority in this House as also the other House choosing to ignore
that. The second regret is with regard
to the manner in which we are discussing this. Sir, there are many a challenging moments in democracy where
hard decisions are to be taken. But
this is one Bill where there is something more serious than what meets the
eye. When this House had debated this
Bill on the 17th of May, I had, at that stage, while opening the
discussion for my Party, said that that moment was probably one of the all-time
low for Indian Parliament, where Parliament instead of legislating in public
interest was legislating in
self-interest. But look at the manner
in which we are now legislating. Our Budget Session got a shadow of this
Bill, and our Budget Session ended before schedule because some persons holding
offices of profit had to be protected; and, because parliament was in Session,
an Ordinance could not be passed; and, therefore, this House lost valuable time
in the Budget Session because the Budget Session was preponed and adjourned
ahead of schedule. Thereafter, a political
controversy with regard to resignations, by-elections, etc. took place. We then
--at least, we have the satisfaction, on this side, of having opposed this Bill -- approved this Bill. And, when we approved this Bill, we were
reminded by the highest constitutional authority of this land that, probably,
what you have done is not constitutional.
We are now choosing to overrule him, and, while we are choosing to
overrule him, we are not merely subverting the Constitution, there is,
certainly, unrest on our side even on the manner in which we are doing it. We were discussing a Motion on the Mumbai
blasts yesterday. Today, for some
reason we decided to put that on the backburner, and, suddenly, took up this
Bill. What is so sacrosanct about
today, the 27th of July, that this Bill must be taken up in the
Rajya Sabha today? Because 28th
is Friday and it is not normally possible to do detailed legislative business;
29th and 30th will be Saturday and Sunday; somehow, this
Bill must be approved today itself and that is the deadline, so that it can be
approved by the Lok Sabha on the 31st. And what is the consequence of 31st? That the Election Commission has asked
certain respondents including one of the State Governments, "please give your response in
relation to certain offices". The
substance of this Bill is that we are subverting the Constitution. The manner in which we are discussing it, we
are subverting parliamentary procedures and giving a preference to
self-interest of parliamentarians rather than the issue of terrorism which we
have chosen to put on the backburner, so that on the 31st some of
our colleagues in this House as also the other House can be saved. When I said that, when we took it up on the
17th of May, it was an all-time low. Today, Sir, we are compounding the matter further, that
somehow all other issues in the country
including the discussion on terrorism can wait but the right of parliamentarians
to profit from offices conferred on them by the executives must be given priority. This, certainly, will not be a glorious
moment for this House. Sir, at least,
my Party has the satisfaction of having opposed this Bill from its very
inception. I remember in the earlier
round in May when I had given several reasons to oppose this Bill, I was
taunted by the other side that my arguments were laughable.

(Contd.
by PB/2C)

PB/2c/2.45

SHRI
ARUN JAITLEY (CONTD.): I don't have the satisfaction today of the last laugh in
view of what has happened in the last few months. But we all have this concern that what kind of an august body are
we. We committed a constitutional
blunder; we committed a constitutional monstrosity by bringing a legislation in
the face of Article 102. We tried to exempt not offices, but our concern was to
the holder of the offices who had to be protected. We were reminded by the
highest constitutional authority that this requires reconsideration. Sir, never has this country seen such a
disconnect between what the parliamentary majority is deciding and the will of
the people. Sir, a few days ago, I saw on television a television poll saying
-- and television polls let me concede are not representative enough -- can
President overrule Parliament? The
question was framed in a manner where the answer should have been obvious
'no'. But where are we taking our own
credibility by legislations of this kind? Ninety-one per cent of the people on
the television said 'yes; he should in a Bill of this kind'. That is the
disconnect we are bringing between public opinion and what this House is
deciding, and let us be very clear that there are not many occasions that we,
in parliamentary history, get to correct the wrongs which we have
committed. We repent over those wrongs;
our future generations regret those wrongs.
But this is a historic occasion where opportunity has revisited us, an
opportunity has revisited us to tell us that public opinion is against you,
media opinion is against you, the opinion of the highest constitutional
authority is against you and all constitutional advice is against you. Please reconsider what you have done. I can understand, Sir, for want of
understanding of constitutional niceties, we may decide and commit a mistake
once. I can understand, Sir, that
vested interests, at times, to save a Government in power or a coalition, may
compel us to commit a mistake, but as for those who refuse to correct mistakes
on being repeatedly told what are the mistakes you have committed -- at times,
we wonder why is this being done -- is it merely because of the arrogance of
power that this is being done? We are
in power, we have the numbers, and because we have the numbers, we are in a
position to decide anything, or, is it being done because we refuse to see
reason or rationality or logic or lack the humility to give respect to another
viewpoint, even if the viewpoint comes from the President of India?

Sir, we committed a constitutional
misadventure. A sane advice has come to
us from the President of India, and to respond to that advice, it is the
arrogance of parliamentary majority which tells us, how can he decide? Is he a rival centre of power? Well, the
President of India performs his constitutional duty. But, then, let me assure
you, Sir, Indian democracy is not so fragile. The Indian democracy has many a
safeguards, and amongst those many safeguards that Indian democracy has, the
public opinion may be one, the right to vote out a Government may be another.
Those who all cheer you when you walk to power are the ones who will be looking
at you when you walk down from power, and only history will decide whether you
have the last laugh or those people who are watching you have the last laugh.
And, the Government today is so intoxicated with that arrogance that it is not
thinking in terms of what those people who will watch them when they walk down
from power are going to think. (Contd. by 2d/SKC)

2d/2.50/skc

SHRI
ARUN JAITLEY (CONTD.): Parliamentary majorities are not immortal. The right to
remain in power is not immortal. It gets shaken. With the kind of public
opinion, media opinion and constitutional opinion that has been passed, I have
not the least doubt that the time is not far away when this law will also be
subjected to strict judicial scrutiny. And, if it is held to be violating many
a constitutional provision, it may become very difficult to sustain such a law.

Sir,
I recollect, in the last Session, we had supported the Government on the
amendments to the Municipal Law. Even at that time, we had cautioned them that
there is a presumption of a validity of law, but don't enact laws, which are so
fragile that they fail in scrutiny sooner than later. Don't be under this
arrogance that we are the sovereign and, therefore, we have all the powers.
There are Parliaments in the world, which have complete parliamentary
sovereignty, and they can decide anything. But, the sovereignty of Indian
Parliament is conditioned in matters of legislation on two grounds. The first
is, the Indian Parliament does not have absolute sovereignty. The Indian
Parliament's sovereignty is subject to the legislative competence of the
Parliament. It can legislate only in matters where it is competent to
legislate; it is not the sovereign in matters that fall within the purview of
the State Legislatures.

The
second restraint that we have is, we cannot legislate on a subject that
violates constitutional provisions. Our right to legislate, is, therefore,
conditioned by that limitation. That is why, all our legislations have to
stand, at times, the test of judicial scrutiny. That is how our democracy is
made. Why did we support earlier and why do we now oppose this Bill?

Let
us look at this Bill. The very basis of Article 102 has been that our
Constitution is made on the premise of separation of powers. The Executive
performs its functions, the Legislature performs its functions and the
Judiciary performs its own functions. All the three wings function
independently. The Executive is accountable to the Legislature and, when the
Executive is accountable to the Legislature, to maintain the independence and
dignity of the Legislature, Article 102 was brought into the Constitution. The
Executive cannot confer benefits on you. If you are profiteering from the
Executive, if you are beholden to the Executive, you lose your independence in
the matter of the Executive being accountable to you. And, therefore, the
Constitution has very clearly said that whoever occupies an office of profit,
gets disqualified the moment he holds such an office. The holding of such an
office was itself a disqualification.

We
are now creating a large number of offices, as far as the Union is concerned,
where you continue to hold those offices. Whatever we do now here will be
replicated by all the States. So, you will have hundreds and hundreds -- it
could also be thousands -- of offices all over the country, which would be in
the category of exempted offices, and the effect of those exempted offices will
be that the legislative bodies, and their independence, will be controlled by
the Executive. This is because there will be thousands of legislators all over
the country by such amendments, retrospective or prospective, who would be
given benefits and offices by the Executive, and, therefore, their independence
and dignity to question the Executive when it is accountable to them itself
goes down.

This
Bill, in its spirit, and in letter, goes against what is said in Article 102,
but what are particularly disturbing are two facts. While deciding on this
Bill, we decide to give benefits to certain offices -- the exemption benefits. And, when we choose these offices, what are
the criteria. What was the intention of the framers of the Constitution? The
intention of the framers of the Constitution was that a particular office may
be an office of profit, but the office may require, by its very character, that
a Member of the Legislative body should occupy that office.

(Contd.
by 2e/hk)

HK/2e/2.55

SHRI ARUN JAITLEY (CONTD.): Then such an office
would be considered as an exempted office.
So, the exempted office and its character must have some nexus to the
functions the individual has to perform.
Therefore, conventionally, the offices we put in two places were
Ministers, State Ministers, Deputy Ministers because they necessarily have to
be MPs and MLAs. Then came a situation
where benefits were being conferred on the Leader of the Opposition, on Chief
Whips of parties, on Deputy Whips of parties.
So we included them to say, let leaders of opposition, chief whips,
etc., and all MPs and MLAs should be conferred benefits. I can understand that outside the
legislature there could be some extraordinary offices wherein individual's
experience as an MP or an MLA may be of great use. If such an office comes up, the Constitution envisages in Article
102 that such office could be put in the exempted category and this, Sir, is
the principle ground on which my party and I believe, and most of all on this
side believe, that this law is completely vulnerable. How did you decide the exemption? You did not decide the exemption on the basis that these are
offices where MPs are necessarily required, so exempt them. The requirement of the office is such that
an MP's experience will be of great utility.
You decided this criteria on the basis that a large number of our
colleagues, at present, are in violation of Article 102; they stand to lose
their membership and, therefore, let us amend the law and let us protect these
defaulters as of today. So, the nexus
of this list of exempted offices is not to the requirement of the office, it is
to the holder of the office for whom a privilege is being created. I want to save the present holder of the
office because the stability of my Government depends on his support and,
therefore, depending on who the holder of these offices, I will exempt
him. Was this the object of Article 102
that exemption will have nexus to the holder of the office and not to the
requirement of the office? If on such
colourable exercise of power we start legislating and then we say that I am
sovereign, who is the President to tell us rethink, why should courts interfere
in all these matters, then, certainly if we choose to violate the Constitution,
somebody has to just knock at the door and remind us that, yes, Parliament is
sovereign and supreme in functions which it has authority, but over and above the Parliament, besides
the people of India, there is the Constitution of India and, therefore, the
mandate of this Parliament may include amendment of the Constitution except its
basic structure. The mandate of this
Parliament does not include violation of that Constitution and, therefore, if
the Parliament chooses to violate the Constitution by creating first whole
exemption, then, creating the list of exempted offices whose nexus is not to
the requirements of the office but the nexus is to the holder of the office,
then, certainly, Mr. Chairman, this law is something which should shake the
conscience of every Indian and that is why in poll-after-poll overwhelming
majority people say that Parliament's rights on this should be constrained. This is an extraneous debate. We do not accept that debate. But it is an extraneous debate, which has
started. And then what do we do? We not only make sure we exempt these
offices, we give everybody wholesale exemption since 1959. Now, offices are created in the year 2004,
in 1993, in 1989, but the exemption is with effect from 1959. That is the drafting of this Bill. So, the President rightly says, "How
are you exempting offices prior to the date of birth of that office?" Why are you doing that? And we say, sorry, we are in majority, so we
are entitled to do that; we will just reconsider and say that we want this Bill
back. This, Sir, is the dilemma that we
face today. (Contd. by
2f/KSK)